Collens v. New Canaan Water Co.

• Decision Date: 25 October 1967
• Citation: 155 Conn. 477,234 A.2d 825
• Court: Connecticut Supreme Court
• Parties: Beryl COLLENS et al. v. The NEW CANAAN WATER COMPANY.

Page 825

234 A.2d 825

155 Conn. 477

Beryl COLLENS et al. v. The NEW CANAAN WATER COMPANY.

Supreme Court of Connecticut.

Oct. 25, 1967.

Sidney Vogel, Norwalk, for appellant (defendant).

John N. Cole, Stamford, for appellees (plaintiffs).

Before KING, C.J., and ALCORN, HOUSE, COTTER and THIM, JJ. COTTER, Associate Justice.

The plaintiffs are owners of residential properties along the Noroton River in New Canaan. The defendant is a specially chartered public utility supplying water to a part of New Canaan and is also a riparian owner on the Noroton River. The property of the plaintiffs Beryl and Elizabeth Collens lies upstream from that of the defendant; the remaining plaintiffs are lower riparian proprietors. In substance, the plaintiffs in their complaint alleged that the defendant had intercepted and diverted waters of the Noroton River by means of wells and ditches, and thereby reduced and at times completely depleted the natural flow of the waters of the river to the plaintiffs' lands and ponds, and that this constituted an unlawful interference with the plaintiffs' rights as riparian owners. After a trial, the court rendered judgment for each of the plaintiffs as hereinafter more particularly set forth. The defendant appealed.

I

Appearing specially, the defendant interposed a jurisdictional claim, by means of a motion to erase, alleging that primary jurisdiction over the matters raised in the complaint rested with the public utilities commission by virtue of §§ 16-11, 16-12 and 16-13 of the General Statutes and that the statutory remedies vested in the public utilities commission must first be exhausted. The denial of that motion is the basis of the defendant's first claim of error. These statutory provisions pertain to the management and operation of public service companies but do not authorize, or purport to authorize, the taking of property or usufructuary rights without just compensation. The facts giving rise to the present dispute essentially involve a question of the private property rights of various riparian owners, including the defendant, and therefore do not fall within the contemplation of the administrative process established under the cited statutes. The incidental effects which a judgment may have on the defendant's duty as a public utility, as opposed to its duty as an owner of land, are not sufficient to bring the matter within the primary jurisdiction of the public utilities commission. The plaintiffs properly resorted to this action in the Superior Court. See Adams v. Greenwich Water Co., 138 Conn. 205, 217, 83 A.2d 177; Watson v. New Milford Water Co., 71 Conn. 442, 451, 42 A. 265.

II

Prior to trial, the plaintiffs were allowed to amend their complaint, which originally sought extensive equitable relief and punitive damages of $15,000, by adding claims for compensatory damages in the total amount of $112,500. Although the amendment introduced a claim for compensatory damages, and certain of the plaintiffs were awarded a total of $6900 pursuant to this portion of the case, this addition to the complaint and prayers for relief did not mean that the plaintiffs thereby pleaded a new cause of action as claimed by the defendant. Vickery v. New London N.R. Co., 87 Conn. 634, 640, 89 A. 277.

III

The defendant seeks extensive corrections of the finding, including the addition of 129 paragraphs of its draft finding. Many of the paragraphs of the draft finding are not admitted or undisputed, and some are essentially conclusions. 'Other additions sought would not directly affect the ultimate facts upon which the judgment depends. No useful purpose would, therefore, be served by adding these additional facts to the finding.' Aetna Casualty & Surety Co. v. Murray, 145 Conn. 427, 429, 143 A.2d 646, 647.

The defendant also seeks the deletion of certain paragraphs of the finding claimed to have been found without evidence. The deletions most vigorously urged are claimed on the ground that they were found without evidence or 'upon an interpretation or accreditation of expert testimony based upon unreasonable grounds unsupportable by any expertise.' This claim is directed at what appears to be the primary issue in the case. The defendant agrees that there is very little dispute as to the 'general facts of the case' and that the 'heart question of the case' is a determination as to whether the demonstrated use of the defendant's wells actually caused a diversion of the river waters to itself. The trial was largely a conflict of expert opinion, and these challenged findings represent the court's acceptance of the testimony offered by the plaintiffs' expert. If this testimony was legally acceptable, the finding must stand and the conclusions of the court are justified.

Certain pertinent facts are uncontested and were properly found by the court. In 1957 the defendant purchased a parcel of property along the Noroton River, which runs in a southerly direction from a point in New Canaan for a total length of between four and five miles and empties into Long Island Sound. Beginning in 1959, the defendant made extensive changes in that property, including the digging of a lagoon, the removal of boulders from the river so as to leave a smooth bottom, and the widening of the river itself. The plaintiffs make no claim that the defendant dug on any property of any of the plaintiffs or on property which did not belong to the defendant. The lagoon was connected to the river by ditches and measured approximately 175 feet in length, ten feet below the level of the riverbed in depth, and thirty feet wide at its widest point. Another ditch, measuring 110 feet long, fifteen feet wide and six feet deep, was excavated by the defendant to the northwest of the lagoon and connected to it by means of a culvert. After the digging was completed, water from the river was allowed to flow into the logoon.

The defendant also installed five wells in the general vicinity of the river and the lagoon, the closest being fifty feet from the river and the furthest 120 feet. These wells are so designed as to enable the defendant to pump subterranean waters into its main lines of distribution. Pumping operations were initiated on a limited basis in July of 1960. The amount of water contributed to the defendant's system from the wells at its Noroton River site increased substantially between 1960 and 1964, reaching a total of over 90 million gallons in the latter year. The period of greatest pumping has generally been during the summer months. In 1964 the defendant began deepening its lagoon, but the work was halted by town officials for reasons unconnected with this lawsuit.

The plaintiffs, as riparian owners, use the Noroton River of such recreational activities as swimming, boating and fishing. In addition, the flow of the river materially enhances the scenic value of the plaintiffs' properties. During the summer months of 1960, 1961 and 1962, the condition of the river, and the ponds through which it flows, was generally satisfactory. Beginning in the summer of 1963, however, and continuing through the summers of 1964 and 1965, the flow of the river in the vicinity of the plaintiffs' properties was substantially diminished. At various times the river flowed into the defendant's lagoon but ceased flowing altogether to the south (downstream) of the lagoon. On other occasions the riverbed became dry in the general vicinity below the Collens pond and upstream from the lagoon. At all times during the periods in question, however, the river flowed into the Collens pond, located approximately 600 feet upstream from the defendant's lagoon. On September 27, 1965, the river flowed past the defendant's lagoon, but the riverbed became dry at a point less than 200 feet downstream. On that day, the flow of the river at a dam on the Collens pond was measured at approximately 300,000 gallons per day, while the flow at a point immediately below the defendant's well site, 500 feet downstream from the dam, was 80,000 to 100,000 gallons per day. The drying up of the riverbed and ponds resulted in the presence of dead fish, created an offensive odor, and impaired the recreational and scenic advantages of the plaintiffs' properties.

Each side relied on the testimony of an expert witness, and the trial thereafter developed into a classic battle of the experts. The record clearly indicates that each of these witnesses possessed distinguished credentials in the field of hydraulics and waterworks engineering. There is no dispute as to the general qualifications of either witness.

It was the opinion of the plaintiffs' expert that the pumping of subsurface waters by the defendant created a set of conditions which induced a seepage or soaking through of the river and lagoon waters to a greater degree than would normally prevail. He described the Noroton River valley, the result of glacial action, as a narrow valley gouged by the glacier and filled on its recession with a water-carrying underground formation and with surface water in the form of the Noroton River, a phenomenon which made the valley a good location for wells. It was his opinion that in the absence of pumping there is a static underground water level, and, if a well is placed in a water-bearing formation and water pumped out of the well, the effect is to pull the water level in the formation down from the static level. It was, therefore, his conclusion that this was happening at the defendant's wells in that water was being drawn from the river to supply the wells. The removal of the subsurface waters, he testified, created a more porous underlying area or what might be called a hydraulic gap, which in turn caused surface waters to penetrate the riverbed and the lagoon bottom and eventually to be drawn to the defendant's wells. This opinion was supported by direct and circumstantial evidence as well as by admissions of the defendant to the effect that the deepening of the...